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Concrete Life Preserver
Deferred Tax Assets fabricated losses...
FHFA and Treasury engineered these large and early losses deliberately. But without these engineered losses, Fannie Mae would never have run out of capital, and would have survived the financial crisis stronger than ever.
Fannie Mae
Form 10K For the fiscal year ended December 31, 2009
Quote: “The aggregate liquidation preference on the senior preferred stock will be $76.2 billion, which will require an annualized dividend of approximately $7.6 billion. This amount exceeds our reported annual net income for all but one of the last eight years, in most cases by a significant margin. Our senior preferred stock dividend obligation, combined with potentially substantial commitment fees payable to Treasury starting in 2011 (the amounts of which have not yet been determined) and our effective inability to pay down draws under the senior preferred stock purchase agreement, will have a significant adverse impact on our future financial position and net worth.” End of Quote Page 7
Link: https://www.fanniemae.com/sites/g/files/koqyhd191/files/migrated-files/resources/file/ir/pdf/quarterly-annual-results/2009/form10k_022610.pdf
Mr. Howard,
Quote: Once in conservatorship, the Companies’ managements had no role in negotiating the terms on which they would be offered assistance; Treasury and FHFA set these terms unilaterally. They included a requirement that any shortfalls in the Companies’ book capital be covered with “draws” of senior preferred stock that never could be repaid, meaning Fannie and Freddie had to pay a dividend to Treasury of 10 percent after-tax in cash, or 12 percent in kind, in perpetuity, on their highest amounts of senior preferred stock outstanding at any one time. This unprecedented non-repayment feature gave Treasury and FHFA an extremely strong incentive to make accounting choices for the Companies that accelerated or exaggerated their expenses and greatly increased their losses, in order to create a large and permanent flow of revenue to Treasury.
Between the time Fannie and Freddie were put into conservatorship and the end of 2011, well over $300 billion in non-cash accounting expenses were recorded on their income statements. These non-cash expenses, most of which were discretionary, eliminated all of the Companies’ capital and forced them, together, to take $187 billion from Treasury.
But because accelerated or exaggerated expenses cause losses that are only temporary, Fannie’s and Freddie’s non-cash losses began to reverse themselves in 2012. Coupled with profits resulting from a rebounding housing market, the reversal of these losses enabled both Companies to report in August 2012 sufficient second quarter income to not only pay their dividends to Treasury but also retain a total of $3.9 billion in capital.
As soon as it became apparent that a large percentage of the non-cash accounting losses booked during the previous four years was about to come back into income, Treasury and FHFA entered into the Third Amendment to the PSPA. The Third Amendment substituted for the fixed dividend payment a requirement that all future earnings—including reversals of accounting-related expenses incurred earlier—be remitted to Treasury. From the time the Third Amendment took effect through the end of 2014, Fannie and Freddie paid Treasury $170 billion, $133 billion more than they would have owed absent the Amendment.” End of Quote
Link: https://howardonmortgagefinance.com/2015/07/
Cumulative Dividends Paid by Both Enterprises
$301,045 ($ billions)... And calling for a Cram-Down!
Vancmike, I appreciate your contribution to our cause in our attempt to get out of this prison.
When giving consideration to the amount of the Treasury Draws and the amount of the Treasury payments. Fannie Mae had $47 billion in regulatory capital and was in full compliance with all of its statutory capital requirements on the day it was put into conservatorship and the senior preferred stock agreement was signed.
Deferred Tax Assets fabricated losses, the FHFA admits this fact in a foot note.
(From what I have read)
During the following 18 months, Fannie Mae’s actual credit-related losses—its loan charge-offs and foreclosed property expense— were just $16 billion. Virtually all the rest of its losses were accounting changes made by the company’s conservator, FHFA, that pulled into Fannie Mae’s 2008 and 2009 financial statements over $100 billion in "expenses" that, as it turns out, never occurred.
What I am reading, “FHFA took a $21 billion charge to set up a reserve against the company’s deferred tax assets, arguing that it would not earn enough in the future to realize their full value, and gave a similar reason for writing off $8 billion in low-income housing tax credits. FHFA also took $17 billion in impairments on the company’s private-label security holdings and put $56 billion into its reserve for future loan losses, increasing that to $66 billion on December 31, 2009.
FHFA and Treasury engineered these large and early losses deliberately. But without these engineered losses, Fannie Mae would never have run out of capital, and would have survived the financial crisis stronger than ever.'
Link: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=170005269
From the FHFA
Deferred Tax Assets fabricated losses, the FHFA admits this fact in a foot note on their own website. Well over $300 billion in non-cash accounting expenses were recorded on their income statements. These non-cash expenses, most of which were discretionary, eliminated all of the Companies’ capital and forced them, together, to take $187 billion from Treasury. Fabricated losses to make the companies appear bankrupted.
FROM NUMBER 1 FOOT NOTE FHFA WEBSITE: link below
NOTE: “UNREALIZED LOSSES”
Quote: “Both GAAP stockholders’ equity and GAAP net worth are measures of the difference between an Enterprise’s assets and liabilities. Both measures include realized and unrealized losses as of the reporting date. Losses ultimately realized in the future may differ from unrealized losses as of the reporting date.” End of Quote...
Quote: “Quote, "Excludes $1 billion in liquidation preference on the senior preferred stock position obtained by Treasury from each Enterprise upon initiation of the Senior Preferred Stock Purchase Agreement. The initial $1 billion is not a draw on the Treasury’s commitment under the agreement.” End of Quote.
Link: https://www.fhfa.gov/DataTools/Downloads/Documents/HPI/Market-Data/Table_1.pdf
In Addition, Mr. Howard Quote: “Because accelerated or exaggerated expenses cause losses that are only temporary, Fannie’s and Freddie’s non-cash losses began to reverse themselves in 2012. Coupled with profits resulting from a rebounding housing market, the reversal of these losses enabled both Companies to report in August 2012 sufficient second quarter income to not only pay their dividends to Treasury but also retain a total of $3.9 billion in capital. As soon as it became apparent that a large percentage of the non-cash accounting losses booked during the previous four years was about to come back into income, Treasury and FHFA entered into the Third Amendment to the PSPA.” End of Quote
One other point you made,
Quote:” Personally I do not think this part of the SPS can be challenged but the increase of the Liquidation Preference as part of the 3rd Amendment can. Let the UST have $ 2 bn and NO MORE.” End of Quote
I prefer Barron’s approach, void the entire contract, SPSPA contract. I understand, time limits. Barron mentioned, the new ruling by the SCOTUS a few days ago may offer an opportunity to bypass the letter agreement time table and go straight for the 2008 original contract.
Thank you,
Regards
Question, how much commitment money did Treasury actually deposit into the account of the companies? Money recorded on the balance sheet?
I understand,
No cash given there was consideration given because the UST agreed to provide up to $100 billion additional funding at the time to calm the MBS markets.
The FHFA gave the companies to the Treasury for a commitment of $100 billion, the day the SPSPA was signed, later date increasing to $200 billion, in addition, 79.9% ownership of the companies common stock. This took place when the FHFA freely admitted the companies were adequately capitalized. The Treasury paid no money.
The commitment was $100 billion increased to $200 billion before the cut off date in 2009, the cut off date to purchase obligations.
The U.S. Department of the Treasury (Treasury) provides Fannie Mae and Freddie Mac with financial support through the Senior Preferred Stock Purchase Agreements (SPSPAs), which were executed on September 7, 2008, one day after Fannie Mae and Freddie Mac entered conservatorships.
In exchange for Treasury’s financial support, the SPSPAs require Fannie Mae and Freddie Mac, among other things, to make quarterly dividend payments to Treasury, provide Treasury with a Liquidation Preference, and beginning in 2010 pay Treasury a periodic commitment fee that reflects the market value of the outstanding Treasury commitment, as well as Stock Warrants for the purchase of common stock representing 79.9% of the common stock of Fannie Mae and Freddie Mac, respectively, on a diluted basis.
On May 6, 2009, Treasury and the Enterprises amended the SPSPAs, increasing Treasury’s commitment of financial support from $100,000,000,000, respectively, to $200,000,000,000, respectively.
FOFreddie,
What am I missing here, anyone please help.
PURCHASE OF SENIOR PREFERRED STOCK AND WARRANT
What makes no sense it appears to be when the SPSPA took place no money changed hands from the Treasury Department on to the balance sheet of the companies; The Treasury paid no money on the purchase price.
non-cash activity,
If this is true?
The Treasury's illegal contract was never consummated, the Treasury paid us nothing, the purchase price of the contract was in the amount of $1 billion for purchase of One Million Shares (1,000,000) with an initial liquidation preference of $1,000 per share. Shares of senior equity in FNMA. It's all illegal and unconstitutional.
Our Friend Bryndon stated, “I'm pretty sure it was a non-cash activity.”
A non-cash activity, so in essence the FHFA gave away the companies for free with no cash added on to the balance sheet? A verbal transaction. Amazing!
If I am reading this wrong, someone help me.
Quote: “PURCHASE OF SENIOR PREFERRED STOCK AND WARRANT; FEES 3.1.
Initial Commitment Fee. In consideration of the Commitment, and for no additional consideration, on the Effective Date (or as soon thereafter as is practicable) Seller shall sell and issue to Purchaser, and Purchaser shall purchase from Seller, (a) one million (1,000,000) shares of Senior Preferred Stock, with an initial liquidation preference equal to $1,000 per share
($1,000,000,000 (one billion dollars) liquidation preference in the aggregate), and (b) the Warrant.” End of Quote Page 5
Link: https://www.fhfa.gov/Conservatorship/Documents/Senior-Preferred-Stock-Agree/FNM/SPSPA-amends/FNM-SPSPA_09-07-2008.pdf
It is not just a poster on here... It is Barron, and he has been all over this board.
He is asking you to prove him wrong. If he can be proved wrong no need to file a suit, that is my understanding of why he posted the question...
Several Investors on this board has expressed to Barron the willingness to help him with $ ... But I have not read where he personally asked for $ ...
Barron asked, to anyone...
“This leads to the question, who authorized the appropriation of taxpayer debt to provide the 200 billion commitment? Certainly not Congress. Please someone show where Treasury was authorized by a law to make a 200 billion commitment available in exchange for One Million Shares (1,000,000) with an initial liquidation preference of $1,000 per share. Shares of senior equity in FNMA? It's all illegal and unconstitutional.”
Donotunderstand, I appreciate your contribution to our effort in getting out of this prison.
“time of emergency-near “war times” ?
Even in war time real property is compensated under the 5th...
“how do two judges come to the edge of saying we got screwed and then vote with the assailant”
It has been covered a dozen times on this board...
It was explained to you in the post you replied too.
“Quote: "This lawsuit does not challenge the foregoing arrangement made in September 2008. While Plaintiffs do not concede that all the measures taken in September 2008 were justified or necessary, they are not here to challenge the placement of Fannie and Freddie into conservatorship at the height of the financial crisis, or the original deal struck by Treasury and FHFA at that time." End of Quote. Page 7
The lawyers are focused on the third amendment net worth sweep. And IT IS NOT WORKING!
Again,
“Well, why didn't you bring a takings claim?”
JUSTICE BREYER: -- and this seems like a takings claim, why should we stretch out of recognition or stretch or try to draw lines unnecessarily on the question of derivative actions? Page 71
JUSTICE BREYER: I'm -- I'm aware of derivative action of the conservator. In fact, he so -- goes so far that the company's hurt, really hurt, and the shareholders are destroyed, bring a takings claim, but as long as there's a colorable claim, as long as there's a colorable defense, forget it. Apply ordinary derivative law. Page 71
JUSTICE BREYER: “FORGET IT” …
MR. THOMPSON: Your Honor, we have brought a takings claim, but that doesn't absolve this Court of -- under the APA, of addressing our challenge to the lawfulness of the agency action. There's no reason to think that – Page 70
Let me interpret MR. Thompson, Your Honor, I work for JPS Shareholders and these JPS Shareholders don't care about the company or the common shareholders, matter of fact we want the Treasury to cram-down, place the company in receivership or whatever it takes so we can collect Par Value on our investment! The Contract, first amendment, second amendment we don't care. My clients are asking this Court to draw a line in the sand (third amendment) with a 'colorable claim' so we can collect Par Value. JUSTICE BREYER: “FORGET IT” …
The question was asked on this board, “Why did Breyer vote along with the other Justices?” Ha
SUPREME COURT OF THE UNITED STATES
Justice Breyer told the Plaintiffs how to win!
UPMOST IMPORTANT: JUSTICE BREYER: Quote: “Thank you. I think in reading this you could, with trying to simplify as much as possible, do you -- the shareholders' claim as saying we bought into this corporation, it was supposed to be private as well as having a public side, and then the government nationalized it. That's what they did. If you look at their giving the net worth to Treasury, it's nationalizing the company. Now, whatever conservators do and receivers do, they don't nationalize companies. And when they nationalized this company, naturally they paid us nothing and our shares became worthless. And so what do you say?” End of Quote, page 12
Link: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-422_3e04.pdf
DERIVATIVE. Coming from another; taken from something preceding, secondary; as derivative title, which is that acquired from another person. There is considerable difference between an original and a derivative title. When the acquisition is original, the right thus acquired to the thing becomes property, which must be unqualified and unlimited, and since no one but the occupant has any right to the thing, he must have the whole right of disposing of it. But with regard to derivative acquisition, it may be otherwise, for the person from whom the thing is acquired may not have an unlimited right to it, or he may convey or transfer it with certain reservations of right. Derivative title must always be by contract.
The lawyers are focused on the third amendment net worth sweep; IT IS NOT WORKING! By Public Law the whole contract is illegal, the contract is illegal based on the United States is not permitted to charge a commitment fee to be paid by the enterprises. The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract.
THE CHARTER ACT IS THE LAW
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171648502
stockanalyze, you asked what do we do with this information?
Barron has proposed to file a lawsuit against the Treasury in violation of the Charter Act, the conservatorship illegal. He asked us to help him.
Starting Point
Barron asked, Anyone?
“This leads to the question, who authorized the appropriation of taxpayer debt to provide the 200 billion commitment? Certainly not Congress. Please someone show where Treasury was authorized by a law to make a 200 billion commitment available in exchange for One Million Shares (1,000,000) with an initial liquidation preference of $1,000 per share. Shares of senior equity in FNMA? It's all illegal and unconstitutional.”
Page 5
Link: https://www.fhfa.gov/Conservatorship/Documents/Senior-Preferred-Stock-Agree/FNM/SPSPA-amends/FNM-SPSPA_09-07-2008.pdf
The Senior Preferred Stock Purchase Agreement is not a law. The SPSPA is an illegal contract, The Charter Act is the Law.
FEDERAL NATIONAL MORTGAGE ASSOCIATION CHARTER ACT
As amended through July 25, 2019
link: https://www.fanniemae.com/sites/g/files/koqyhd191/files/migrated-files/resources/file/aboutus/pdf/fm-amended-charter.pdf
HOUSING AND ECONOMIC RECOVERY ACT OF 2008
Link: https://www.congress.gov/110/plaws/publ289/PLAW-110publ289.pdf
SENIOR PREFERRED STOCK PURCHASE AGREEMENT
Dated September 7, 2008.
link: https://www.fhfa.gov/Conservatorship/Documents/Senior-Preferred-Stock-Agree/FNM/SPSPA-amends/FNM-SPSPA_09-07-2008.pdf
ALL THE AGREEMENTS
link: https://www.fhfa.gov/Conservatorship/Pages/Senior-Preferred-Stock-Purchase-Agreements.aspx
Barron Quote: “The statute of limitations will expire in 2025, 6 years from the 2019 letter agreement.”
Letter agreement link: https://home.treasury.gov/news/press-releases/sm786
I appreciate your continued support for our efforts. Hope Mr Kelly wins against this theft. Again, I believe Barron has the best approach with the ‘Charter Act’… Thanks for posting
You ask “So” ? Like in so what?
The Plaintiffs brought the wrong lawsuit to the SCOTUS!
This has been the MISTAKE of the JPS Lawyers from the beginning. And making the same mistake over and over.
UNITED STATES COURT OF FEDERAL CLAIMS
Wazee Street Opportunities Fund IV LP,
Filed 04/03/23
Quote: "This lawsuit does not challenge the foregoing arrangement made in September 2008. While Plaintiffs do not concede that all the measures taken in September 2008 were justified or necessary, they are not here to challenge the placement of Fannie and Freddie into conservatorship at the height of the financial crisis, or the original deal struck byTreasury and FHFA at that time." End of Quote. Page 7
The lawyers are focused on the third amendment net worth sweep. And IT IS NOT WORKING!
Link: https://storage.courtlistener.com/recap/gov.uscourts.uscfc.37252/gov.uscourts.uscfc.37252.30.0.pdf
IN THE SUPREME COURT OF THE UNITED STATES
JUSTICE SOTOMAYOR:
Quote: "I just want to make sure that I get the gist of your argument, and I think I have it right. I know you and the shareholders disagree on whether this deal had a reasonable cause, but let's posit a deal that didn't. For no rational base -- reason, the FHFA sold all of Fannie and Freddie's assets in exchange for one dollar to itself. It did exactly what Justice Breyer said. It nationalized things. It nationalized the company. Your position is that there is no court review of a decision by the FFH as conservator that could give shareholders the right to challenge their action?” End of Quote page 19
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-422_3e04.pdf
Let's simplify this...
“FHFA sold all of Fannie and Freddie's assets in exchange for one dollar to itself.”
No Your Honor, the illegal contract was never consummated, the Treasury paid us nothing.
In addition:
Your Honor, The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract: The Charter Act is the Law.
SUBSECTION (g) TEMPORARY AUTHORITY OF TREASURY TO PURCHASE OBLIGATIONS AND SECURITIES; CONDITIONS.— EMERGENCY DETERMINATION REQUIRED. Page 16
Under this subsection the FHFA / Treasury would have to prove, 'What was the Emergency'...
(And this will open the door for the plaintiffs to bring out the forced write down of the deferred tax assets, treasury's charge of an illegal commitment fee, violated the law by not adding the liabilities onto the national debt, neither entity met any of the twelve conditions for conservatorship spelled out in the newly passed HERA legislation, 5th amendment, 14th amendment, etc...)
There was no 'Emergency.'
FHFA freely admitted the companies were adequately capitalized, evidence the companies exceeded capital requirements absolutely no need for emergency funding.
SECOND QUARTER CAPITAL RESULTS
Minimum Capital
Fannie Mae’s FHFA-directed capital requirement on June 30, 2008 was $37.5 billion and its statutory minimum capital requirement was $32.6 billion. Fannie Mae’s core capital of $47.0 billion exceeded the FHFA-directed capital requirement by $9.4 billion.
Freddie Mac’s FHFA-directed capital requirement on June 30, 2008 was $34.5 billion and its statutory minimum capital requirement was $28.7 billion. Freddie Mac’s core capital of $37.1 billion exceeded the FHFA-directed minimum capital requirement by $2.7 billion.
Link:https://www.fhfa.gov/mobile/Pages/public-affairs-detail.aspx?PageName=FHFA-Announces-Suspension-of-Capital-Classifications-During-Conservatorship-and-Discloses-Minimum-and-RiskBased-Cap.aspx
https://www.fanniemae.com/sites/g/files/koqyhd191/files/migrated-files/resources/file/aboutus/pdf/fm-amended-charter.pdf
A non-cash activity, so in essence the FHFA gave away the companies for free with no cash added on to the balance sheet? A verbal transaction. Amazing!
I have a question, when the SPSPA took place did any money change hands from the Treasury Department on to the balance sheet of the companies? Recorded in the amount of $1 billion?
Page 5
https://www.fhfa.gov/Conservatorship/Documents/Senior-Preferred-Stock-Agree/FNM/SPSPA-amends/FNM-SPSPA_09-07-2008.pdf
Quote: “(3) FUNDING.—For the purpose of the authorities granted in this
subsection, the Secretary of the Treasury may use the proceeds of the sale of
any securities issued under chapter 31 of Title 31, and the purposes for
which securities may be issued under chapter 31 of Title 31 are extended to
include such purchases and the exercise of any rights in connection with
such purchases. Any funds expended for the purchase of, or modifications
to, obligations and securities, or the exercise of any rights received in
connection with such purchases under this subsection shall be deemed
appropriated at the time of such purchase, modification, or exercise.” End of Quote
THE ABOVE TAKE NOTE:
PURCHASES,
WITH SUCH PURCHASES,
EXPENDED FOR THE PURCHASE OF,
CONNECTION WITH SUCH PURCHASES,
AT THE TIME OF SUCH PURCHASE.
SEC. 304 Purchase Obligations
Subsection (c)
$200,000,000,000 (two hundred billion dollars): This amount of money is construed as a commitment from the Treasury, a line of credit, backstop, this money was not used to purchase anything. What did the $200 billion buy? NOTHING
This money was not used to purchase obligations of Fannie Mae as permitted in the HERA legislation under terms as defined by the changes of the company's Charter Act by HERA.
The HERA legislation granted temporary authority to the Treasury to purchase obligations of the Enterprise, above the limits written in the Charter, (Charter limitation of 2.25 billion).
Therefore, the FHFA was not given authority by Congress to enter into contract with the United States Treasury in the amount of $200,000,000,000 (two hundred billion dollars): This amount of money is construed as a commitment from the Treasury, a line of credit, backstop.
Neither the Charter Act nor did HERA authorize the Treasury to charge a commitment fee on a line of credit to be paid by the Enterprise. The United States prohibition on assessment or collection of fee or charge to Fannie Mae, (section 304 Fee Limitation). Only Federal Reserve Banks are authorized to be reimbursed of fees, (section 309).
SEC. 304. SECONDARY MARKET OPERATION
Fee Limitation
Quote: “(f) PROHIBITION ON ASSESSMENT OR COLLECTION OF FEE OR CHARGE BY UNITED STATES.—Except for fees paid pursuant to section 309(g) of this Act and assessments pursuant to section 1316 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, no fee or charge may be assessed or collected by the United States (including any executive department, agency, or independent establishment of the United States) on or with regard to the purchase, acquisition, sale, pledge, issuance, guarantee, or redemption of any mortgage, asset, obligation, trust certificate of beneficial interest, or other security by the corporation. No provision of this subsection shall affect the purchase of any obligation by the Secretary of the Treasury pursuant to subsection (c) of this section.” End of Quote. Page 16
Only Federal Reserve Banks are authorized to be reimbursed of fees, (section 309).
SEC. 309. GENERAL POWERS OF GOVERNMENT NATIONAL MORTGAGE ASSOCIATION AND FEDERAL NATIONAL MORTGAGE ASSOCIATION
Federal Reserve Banks to Act as Fiscal Agents (Fannie Mae and GNMA)
Quote: “(g) DEPOSITARIES, CUSTODIANS, AND FISCAL AGENTS.—The Federal Reserve banks are authorized and directed to act as depositaries, custodians, and fiscal agents for each of the bodies corporate named in section 302(a)(2), for its own account or as fiduciary, and such banks shall be reimbursed for such services in such manner as may be agreed upon; and each of such bodies corporate may itself act in such capacities, for its own account or as fiduciary, and for the account of others.” End of Quote. Page 29
https://www.fanniemae.com/sites/g/files/koqyhd191/files/migrated-files/resources/file/aboutus/pdf/fm-amended-charter.pdf
https://www.congress.gov/110/plaws/publ289/PLAW-110publ289.pdf
NeoSunTzu,
Saw the term on this board.
Regards
Had to edit to meet community standards.
‘LEGACY COMMONS’
I would like to ask each investor to kindly share your personal thoughts.
Quote: “New investors want the existing common to be diluted as much as possible The more dilution, the more money for the new investors. Leaving anything behind for legacy commons (more than what is absolutely necessary, which might be a nickel per share) is what would be stupid.” End of Quote
This could easily be settled where each equity holder could come out of this conservatorship to some degree satisfied. If a secondary IPO is necessary to meet the capital requirements new investors can also profit, almost everyone would be happy.
I gave my thoughts on what I believe to be the real reason behind the cram-down. If the legacy commons are wiped out the naked short outstanding position of the Market Makers goes away. The Market Makers do not have to cover the COUNTERFEIT SHARES.
Thoughts Please?
Link to my reasoning: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171696080
I appreciate Chessmaster and his thoughts on this subject.
Quote “Great question! Of course, we dont know how/when/if that will be resolved. However, the brokerage firm(s) which delivered (fake, phantom shares) should be liable.” End of Quote.
Link: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171697011
Was an ‘Appropriations Clause’ claim saying that FHFA being funded outside of the Congressional appropriations process is a violation of the Constitution in one of the lawsuits? What became of this?
Before the theft of the Undocumented Purchase, the plan is to cram it down.
The limited damage is laughable! The lawsuits are based on the third amendment going nowhere.
Barron, has it right!
The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract: The Charter Act is the Law.
Quote: “In any event - 2023 should be an important year to see who is most right and most wrong. Perhaps you will prove to be right”. End of Quote
Who is most right and who is most wrong prediction on how the unjust judge will rule.
We all know what is right and what is wrong. The cram-down advocated by the dishonorable want the existing common shareholders wiped out, anyway possible, right or wrong. We all know the truth, but the truth does not matter because the unjust judge said so.
Let’s put this in the proper prospectus, as reported by Bloomberg, Paulson met with a select group of hedge fund managers at Eaton Park Capital Management on July 21, where he told them that Treasury was considering a plan to put Fannie Mae and Freddie Mac into conservatorship, which would effectively wipe out common and preferred shareholders.
The plan is to wipe out the shareholders right or wrong. Both common and preferred. And for some unexplained deception the cram-down people think they will escape by reason of the unjust ??
Quote:” When u move to real exchange, naked shorts are wiped out.” End of Quote
I understand, but what about the investors who purchased these phantom shares? The writer of the white paper calculated the massive number, that’s a lot of shares.
Failure to Deliver. This possibly could end as the greatest take down in the history of Wall Street. What happens when the shareholders find out their shares possibly do not exist?
If the powers that be bring the legacy common down to a nickel per share we will never know.
The real reason the dishonorable want the existing common shareholders wiped out.
The People calling for a cram-down use the term
‘LEGACY COMMONS’
Quote: “New investors want the existing common to be diluted as much as possible The more dilution, the more money for the new investors. Leaving anything behind for legacy commons (more than what is absolutely necessary, which might be a nickel per share) is what would be stupid.” End of Quote
Our Friend said it best,
Quote: "benefit all as opposed to the enrichment of the few and dishonorable." End of Quote
Real reason, If the legacy common are wiped out the naked short outstanding position of the Market Makers goes away. The Market Makers do not have to cover the COUNTERFEIT SHARES.
COUNTERFEITING
INFORMATION FROM: U.S. Securities and Exchange Commission web site.
The counterfeiting of U.S. assets. Theft from pension funds, State employee retirement accounts, and U.S. Citizens. The counterfeiting of shares of Fannie Mae and Freddie Mac. Where are our regulators and who are they protecting?
Quote: “Without the counterfeiting of the GSEs shares and the concerted effort to manipulate the stock prices, the GSEs potential to raise significant capital would have been much greater and it is unlikely that the U.S. Taxpayers would be the conservators of these companies at this time. This report shows why this is true and that illegal sellers of the shares of the two GSEs made a vast sum of money taking down these companies to the detriment of the U.S. Citizens. This report names who the key market participants are in the trading of the GSEs.” End of Quote.
Link: https://www.sec.gov/comments/s7-08-09/s70809-407a.pdf#:~:text=Fannie%20Mae%20and%20Freddie%20Mac%20are%20publicly%20traded,was%20occurring%20in%20the%20trading%20of%20the%20GSEs
THE TAKE DOWN
The Market-Makers Naked Short of Fannie Mae stock into oblivion, created the sense the company was bankrupt too big to fail and would destroy the U.S. Economy if something was not done. Afterwards, forced the company into a takeover (nationalization) making the company write off the deferred tax assets creating a huge loss to further the appearance the company to be bankrupt in an attempt to never ever allow Fannie Mae to return to profitability ever.
Why did the plaintiffs voluntarily dismiss their lawsuit, reason?
Judo Jeff,
Quote: “This sets the stage for dealing with FHFA since it seems to satisfy the three Thunder Basin work arounds that were created in Axon and Cochran today.” End of Quote...
Help me out?
The executive branch entities are not given the power to hold in-house tribunals, constitutional propriety.
SUPREME COURT OF THE UNITED STATES
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full because it correctly applies precedent to determine that Axon Enterprise’s and Michelle Cochran’s structural constitutional claims need not be channeled through the administrative review schemes at issue. I write separately, however, because I have grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end.
The taking of private property in violation of the 5th Amendment of the United States Constitution.
FHFA and its Director are executive branch entities. They can not make changes to federal laws. Only Congress can change the law.
Therefore, the U.S. Congress did not give DeMarco the power to take all the future profits of their wards in conservatorship into perpetuity, thus Nationalizing the GSES, based on an Incidental Power in HERA.
The U.S. Congress would have given the FHFA more explicit instructions to do so than merely drafting in the HERA to do whatever it feels is in its best interests. DeMarco, this non-elected bureaucrat, has been allowed to steal the companies for the Treasury.
https://www.supremecourt.gov/opinions/22pdf/21-86_l5gm.pdf
You mention the illegal stock, SPS certificate, statement “cumulative" dividend. A certificate that also states that a dividend is paid out of available funds for distribution. And you think this is legal. You think this is okay? Ha
IT IS ALL ILLEGAL!
LISTEN! IF MR. Fisher can get us out of this prison under the terms he set forth, personally I am all for it.
Barron, has it right!
The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract: The Charter Act is the Law.
SUBSECTION (g) TEMPORARY AUTHORITY OF TREASURY TO PURCHASE OBLIGATIONS AND SECURITIES; CONDITIONS.— EMERGENCY DETERMINATION REQUIRED. Page 16
Under this subsection the FHFA / Treasury would have to prove, 'What was the Emergency'...
(And this will open the door for the plaintiffs to bring out the forced write down of the deferred tax assets, treasury's charge of an illegal commitment fee, violated the law by not adding the liabilities onto the national debt, neither entity met any of the twelve conditions for conservatorship spelled out in the newly passed HERA legislation, 5th amendment, 14th amendment, etc...)
There was no 'Emergency.'
FHFA freely admitted the companies were adequately capitalized, evidence the companies exceeded capital requirements absolutely no need for emergency funding.
SECOND QUARTER CAPITAL RESULTS
Minimum Capital
Fannie Mae’s FHFA-directed capital requirement on June 30, 2008 was $37.5 billion and its statutory minimum capital requirement was $32.6 billion. Fannie Mae’s core capital of $47.0 billion exceeded the FHFA-directed capital requirement by $9.4 billion.
Freddie Mac’s FHFA-directed capital requirement on June 30, 2008 was $34.5 billion and its statutory minimum capital requirement was $28.7 billion. Freddie Mac’s core capital of $37.1 billion exceeded the FHFA-directed minimum capital requirement by $2.7 billion.
Link:https://www.fhfa.gov/mobile/Pages/public-affairs-detail.aspx?PageName=FHFA-Announces-Suspension-of-Capital-Classifications-During-Conservatorship-and-Discloses-Minimum-and-RiskBased-Cap.aspx
https://www.fanniemae.com/sites/g/files/koqyhd191/files/migrated-files/resources/file/aboutus/pdf/fm-amended-charter.pdf
NeoSunTzu,
Your invocation is spot on. Appreciate your post and contribution to our efforts. This conservatorship should be settled where each equity owner benefits as you said,
Quote: "benefit all as opposed to the enrichment of the few and dishonorable."
Regards,
Bryndon, one more question Sir, Our Friend Guido, made the statement,
Quote: "Bryndon has separately stated that he wasn’t able to challenge the SPSPA as he became a shareholder after that date." End of Quote
Statute of limitations?
Barron Quote: "The 6-year statute of limitations do not apply to constitutional claims."
"But lucky for shareholders Treasury keeps changing the material nature of the fee. Treasuries letter agreement and fourth amendment to increase the LP as earnings are retained is a new injury well within the 6-years." End of Quote
Below Thread Barron put forth the above statement:
Quote: “Here is your chance to prove me wrong. Show me any law that allows the Treasury to increase the taxpayers debt to provide the 200 billion commitment. When did Congress amend the Charter Act to allow Treasury and in the future the Federal reserve to assess fees on FNFA not in relation to FNMA corporate debt obligations? The answer to these questions are important. I truly want to be shown I'm wrong before I submit my claim and ask that the SPSPA be nullified.” End of Quote
Reply Quote: “I'll show you one that'll get you sent right out of court, regardless.
28 U.S. Code § 2501” End of Quote
Answer Quote: “The law you site deals with the court of federal claims. This is an Article I federal tribunal created by Congress in the 1980s. The Judges are federal employees with limited terms indirectly answerable to POTUS. No thanks. Shareholders will limit direct money damages to a minimum to preserve their right to have their claim heard in an independent Article III district court.
The 6-year statute of limitations do not apply to constitutional claims.
If Treasury would have left the illegal fee at 10%, then the claim in the first instance would have continued and the 6 years statute of limitations would apply to a common law claim for a violation of statute. But lucky for shareholders Treasury keeps changing the material nature of the fee. Treasuries letter agreement and fourth amendment to increase the LP as earnings are retained is a new injury well within the 6-years.
If the claims are thrown out, then brand new constitutional claims will be put forward. By that point I wont be surprised if a constitutional construction claim of separation of powers on Treasury’s overreach is filed.” End of Quote.
Link to Start of Thread: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171076613
Thank you, Bryndon,
I do hope your firm wins.
Regards
Will you kindly help me out here, what am I missing?
Thanks
“Well, why didn't you bring a takings claim?”
JUSTICE BREYER: -- and this seems like a takings claim, why should we stretch out of recognition or stretch or try to draw lines unnecessarily on the question of derivative actions? Page 71
JUSTICE BREYER: I'm -- I'm aware of derivative action of the conservator. In fact, he so -- goes so far that the company's hurt, really hurt, and the shareholders are destroyed, bring a takings claim, but as long as there's a colorable claim, as long as there's a colorable defense, forget it. Apply ordinary derivative law. Page 71
JUSTICE BREYER: “FORGET IT” …
MR. THOMPSON: Your Honor, we have brought a takings claim, but that doesn't absolve this Court of -- under the APA, of addressing our challenge to the lawfulness of the agency action. There's no reason to think that – Page 70
Let me interpret MR. Thompson, Your Honor, I work for JPS Shareholders and these JPS Shareholders don't care about the company or the common shareholders, matter of fact we want the Treasury to cram-down, place the company in receivership or whatever it takes so we can collect Par Value on our investment! The Contract, first amendment, second amendment we don't care. My clients are asking this Court to draw a line in the sand (third amendment) with a 'colorble claim' so we can collect Par Value. JUSTICE BREYER: “FORGET IT” …
The question was asked on this board, “Why did Breyer vote along with the other Justices?” Ha
SUPREME COURT OF THE UNITED STATES
Justice Breyer told the Plaintiffs how to win!
UPMOST IMPORTANT: JUSTICE BREYER: Quote: “Thank you. I think in reading this you could, with trying to simplify as much as possible, do you -- the shareholders' claim as saying we bought into this corporation, it was supposed to be private as well as having a public side, and then the government nationalized it. That's what they did. If you look at their giving the net worth to Treasury, it's nationalizing the company. Now, whatever conservators do and receivers do, they don't nationalize companies. And when they nationalized this company, naturally they paid us nothing and our shares became worthless. And so what do you say?” End of Quote, page 12
Link: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-422_3e04.pdf
DERIVATIVE. Coming from another; taken from something preceding, secondary; as derivative title, which is that acquired from another person. There is considerable difference between an original and a derivative title. When the acquisition is original, the right thus acquired to the thing becomes property, which must be unqualified and unlimited, and since no one but the occupant has any right to the thing, he must have the whole right of disposing of it. But with regard to derivative acquisition, it may be otherwise, for the person from whom the thing is acquired may not have an unlimited right to it, or he may convey or transfer it with certain reservations of right. Derivative title must always be by contract.
The lawyers are focused on the third amendment net worth sweep; IT IS NOT WORKING! By Public Law the whole contract is illegal, the contract is illegal based on the United States is not permitted to charge a commitment fee to be paid by the enterprises. The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract.
THE CHARTER ACT IS THE LAW
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171648502
Bryndon, first off, I appreciate everything you are doing along with every other person that knows this is wrong what the FHFA / Treasury is doing to the Shareholders both Common and Preferred. In my opinion the Conservatorship should be challenged, not the Third Amendment only. Mistake of the JPS Lawyers: "This lawsuit does not challenge the foregoing arrangement made in September 2008."
Freely admit, I am not a Lawyer.
Best Regards.
Again,
The Plaintiffs brought the wrong lawsuit to the SCOTUS, Third Amendment.
I think Barron has the best approach on how to win: The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract.
THE CHARTER ACT
If I am reading this wrong, please help. Thank you.
Quote: “ Bryndon is asking the court to refund the overpayment to the corporations.” End of Quote
MR. Thompson asked the same.
SCOTUS Quote:
“MR. THOMPSON: Number 1, we're seeking prospective relief so that in your hypothetical the Senate confirmed director would be enjoined from making any future sweep dividend, approving any future sweep dividend payment; and, number 2, we're asking to go back and have the overpayments, over and above the $18.9 billion, to be treated as a pay down of principal. And that would essentially deem the government paid back.
We calculate
those overpayments to be 124 billion dollars,
and each one of those overpayments was an
implementation of the Net Worth Sweep.
So, if there had not been a Net Worth
Sweep, there would be 124 billion dollars of
capital on the balance sheet today.
And if you do the math, the government's been paid back in toto plus 10 percent interest and there's 29.5 billion dollars left over.” End of Quote
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-422_3e04.pdf
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171655775
Guido, I appreciate you going back in forth with this discussion. We know what has not worked.
Mistake of the Lawyers: "This lawsuit does not challenge the foregoing arrangement made in
September 2008."
The Plaintiffs brought the wrong lawsuit to the SCOTUS, Third Amendment.
I think Barron has the best approach on how to win: The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract.
THE CHARTER ACT
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171666023
Quote: "Bryndon has separately stated that he wasn’t able to challenge the SPSPA as he became a shareholder after that date." End of Quote
Barron Quote: "The 6-year statute of limitations do not apply to constitutional claims."
"But lucky for shareholders Treasury keeps changing the material nature of the fee. Treasuries letter agreement and fourth amendment to increase the LP as earnings are retained is a new injury well within the 6-years." End of Quote
Below Thread Barron put forth the above statement:
Quote: “Here is your chance to prove me wrong. Show me any law that allows the Treasury to increase the taxpayers debt to provide the 200 billion commitment. When did Congress amend the Charter Act to allow Treasury and in the future the Federal reserve to assess fees on FNFA not in relation to FNMA corporate debt obligations? The answer to these questions are important. I truly want to be shown I'm wrong before I submit my claim and ask that the SPSPA be nullified.” End of Quote
Reply Quote: “I'll show you one that'll get you sent right out of court, regardless.
28 U.S. Code § 2501” End of Quote
Answer Quote: “The law you site deals with the court of federal claims. This is an Article I federal tribunal created by Congress in the 1980s. The Judges are federal employees with limited terms indirectly answerable to POTUS. No thanks. Shareholders will limit direct money damages to a minimum to preserve their right to have their claim heard in an independent Article III district court.
The 6-year statute of limitations do not apply to constitutional claims.
If Treasury would have left the illegal fee at 10%, then the claim in the first instance would have continued and the 6 years statute of limitations would apply to a common law claim for a violation of statute. But lucky for shareholders Treasury keeps changing the material nature of the fee. Treasuries letter agreement and fourth amendment to increase the LP as earnings are retained is a new injury well within the 6-years.
If the claims are thrown out, then brand new constitutional claims will be put forward. By that point I wont be surprised if a constitutional construction claim of separation of powers on Treasury’s overreach is filed.” End of Quote.
Link to Start of Thread: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=171076613
My question,
"Bryndon’s suit"
Quote: "The First Step – What Our Government Should Do"
2) Unwind the net worth sweep (the “NWS”), beginning January 1, 2013, by
recharacterizing the quarterly dividend payments on the senior preferred stock (the
“SPS”) from exclusively dividend in nature to a combination of a redemption of the SPS
and what would have been paid to the Treasury using the original 10 percent after-tax
annual dividend rate." End of Quote Page 3
Why is this any different than what MR. Thompson asked the SCOTUS to do?
The Plaintiffs lost.
https://drive.google.com/file/d/1LNWzb9QhI1GiOk8W_2MYgERyE4yNRU04/view?pli=1
Guido said Quote: "What Thompson argued was neither derivative nor takings." End of Quote
Guido, will you kindly explain to me what Justice Breyer said to Mr. Thompson?
Thank you.
Asking the board, what am I missing here??
JUSTICE BREYER “Well, why didn't you bring a takings claim?”
JUSTICE BREYER: -- and this seems like a takings claim, why should we stretch out of recognition or stretch or try to draw lines unnecessarily on the question of derivative actions? Page 71
JUSTICE BREYER: I'm -- I'm aware of derivative action of the conservator. In fact, he so -- goes so far that the company's hurt, really hurt, and the shareholders are destroyed, bring a takings claim, but as long as there's a colorable claim, as long as there's a colorable defense, forget it. Apply ordinary derivative law. Page 71
JUSTICE BREYER: “FORGET IT” …
MR. THOMPSON: Your Honor, we have brought a takings claim, but that doesn't absolve this Court of -- under the APA, of addressing our challenge to the lawfulness of the agency action. There's no reason to think that – Page 70
Let me interpret MR. Thompson, Your Honor, I work for JPS Shareholders and these JPS Shareholders don't care about the company or the common shareholders, matter of fact we want the Treasury to cram-down, place the company in receivership or whatever it takes so we can collect Par Value on our investment! The Contract, first amendment, second amendment we don't care. My clients are asking this Court to draw a line in the sand (third amendment) with a 'colorble claim' so we can collect Par Value. JUSTICE BREYER: “FORGET IT” …
The question was asked on this board, “Why did Breyer vote along with the other Justices?” Ha
SUPREME COURT OF THE UNITED STATES
Justice Breyer told the Plaintiffs how to win!
UPMOST IMPORTANT: JUSTICE BREYER: Quote: “Thank you. I think in reading this you could, with trying to simplify as much as possible, do you -- the shareholders' claim as saying we bought into this corporation, it was supposed to be private as well as having a public side, and then the government nationalized it. That's what they did. If you look at their giving the net worth to Treasury, it's nationalizing the company. Now, whatever conservators do and receivers do, they don't nationalize companies. And when they nationalized this company, naturally they paid us nothing and our shares became worthless. And so what do you say?” End of Quote, page 12
Link: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-422_3e04.pdf
DERIVATIVE. Coming from another; taken from something preceding, secondary; as derivative title, which is that acquired from another person. There is considerable difference between an original and a derivative title. When the acquisition is original, the right thus acquired to the thing becomes property, which must be unqualified and unlimited, and since no one but the occupant has any right to the thing, he must have the whole right of disposing of it. But with regard to derivative acquisition, it may be otherwise, for the person from whom the thing is acquired may not have an unlimited right to it, or he may convey or transfer it with certain reservations of right. Derivative title must always be by contract.
The lawyers are focused on the third amendment net worth sweep; IT IS NOT WORKING! By Public Law the whole contract is illegal, the contract is illegal based on the United States is not permitted to charge a commitment fee to be paid by the enterprises. The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract.
THE CHARTER ACT IS THE LAW
What Thompson said, done, doing is not the point.
The lawyers are focused on the third amendment net worth sweep; IT IS NOT WORKING!
JUSTICE BREYER: Bring us a takings claim, not a derivative action.
Guido, Again I appreciate your contribution to this board. And I do hope that one of the lawsuits ends the conservatorship in our favor. You stopped reading Thompson's filings does not change the fact how the SCOTUS ruled, 9-0... Please answer this.
Again:
My question,
Quote: "The First Step – What Our Government Should Do"
2) Unwind the net worth sweep (the “NWS”), beginning January 1, 2013, by
recharacterizing the quarterly dividend payments on the senior preferred stock (the
“SPS”) from exclusively dividend in nature to a combination of a redemption of the SPS
and what would have been paid to the Treasury using the original 10 percent after-tax
annual dividend rate." End of Quote Page 3
Why is this any different than what MR. Thompson asked the SCOTUS to do?
https://drive.google.com/file/d/1LNWzb9QhI1GiOk8W_2MYgERyE4yNRU04/view?pli=1
Patswil, I understand, and do appreciate everyone's contributions to this board,
My question,
Quote: "The First Step – What Our Government Should Do"
2) Unwind the net worth sweep (the “NWS”), beginning January 1, 2013, by
recharacterizing the quarterly dividend payments on the senior preferred stock (the
“SPS”) from exclusively dividend in nature to a combination of a redemption of the SPS
and what would have been paid to the Treasury using the original 10 percent after-tax
annual dividend rate." End of Quote Page 3
Why is this any different than what MR. Thompson asked the SCOTUS to do?
https://drive.google.com/file/d/1LNWzb9QhI1GiOk8W_2MYgERyE4yNRU04/view?pli=1
Barron, instead of contacting the lawyers, contact the Firms paying these lawyers. That should get their attention. (Had to edit to meet community guidelines).
Let's simplify this...
JUSTICE BREYER: “Well, why didn't you bring a takings claim?”
The Plaintiffs brought the wrong lawsuit to the SCOTUS.
TAKINGS CLAIM: Your Honor, The Senior Preferred Stock Purchase Agreement is not a law: The SPSPA is an illegal contract: The Charter Act is the Law.
SUBSECTION (g) TEMPORARY AUTHORITY OF TREASURY TO PURCHASE OBLIGATIONS AND SECURITIES; CONDITIONS.— EMERGENCY DETERMINATION REQUIRED. Page 16
Under this subsection the FHFA / Treasury would have to prove, 'What was the Emergency'...
(And this will open the door for the plaintiffs to bring out the forced write down of the deferred tax assets, treasury's charge of an illegal commitment fee, violated the law by not adding the liabilities onto the national debt, neither entity met any of the twelve conditions for conservatorship spelled out in the newly passed HERA legislation, 5th amendment, 14th amendment, etc...)
There was no 'Emergency.'
FHFA freely admitted the companies were adequately capitalized, evidence the companies exceeded capital requirements absolutely no need for emergency funding.
SECOND QUARTER CAPITAL RESULTS
Minimum Capital
Fannie Mae’s FHFA-directed capital requirement on June 30, 2008 was $37.5 billion and its statutory minimum capital requirement was $32.6 billion. Fannie Mae’s core capital of $47.0 billion exceeded the FHFA-directed capital requirement by $9.4 billion.
Freddie Mac’s FHFA-directed capital requirement on June 30, 2008 was $34.5 billion and its statutory minimum capital requirement was $28.7 billion. Freddie Mac’s core capital of $37.1 billion exceeded the FHFA-directed minimum capital requirement by $2.7 billion.
Link:https://www.fhfa.gov/mobile/Pages/public-affairs-detail.aspx?PageName=FHFA-Announces-Suspension-of-Capital-Classifications-During-Conservatorship-and-Discloses-Minimum-and-RiskBased-Cap.aspx
https://www.fanniemae.com/sites/g/files/koqyhd191/files/migrated-files/resources/file/aboutus/pdf/fm-amended-charter.pdf
If you will read the Thread the statement was made, “ Bryndon Fisher's cases are derivative.” And “ Bryndon is asking the court to refund the overpayment to the corporations.”
I was simply pointing out MR Thompson had already ask the SCOTUS to do the same, refund the overpayment.
The SCOTUS said, ‘NO’ vote 9-0.
So, why are the Lawyers continuing to bring a derivative action?
JUSTICE BREYER: a takings claim, not a derivative action.